1. Introduction and coming into effect

Regulation 1169/2011 on the provision of food information to consumers changes the existing regulatory framework on food labelling in Europe. Its applicability is subject to a several year time process. In fact, although it entered into force on 22nd November2011and some of its rules – i.e. Part B of Annex VI, "Specific requirements concerning the designation of 'minced meat'" - became applicable on 1st January 2014, the remaining provisions of the Regulation will be effective from 13th December 2014. Provisions concerning nutritional declaration are the exception and will apply from 13th December 2016.

The complexity of these new provisions explains the long period of implementation, as food business operators may indeed encounter practical difficulties when conforming to the new requirements. Although guidance to help food businesses meet the requirements has been developed by the European Commission, in a report entitled "Questions and Answers on the application of the Regulation (EU) N° 1169/2011 on the provision of food information to consumers" issued on 31st January 2013, many aspects of the new legislation remain unclear.

2. Scope and Objectives

This Regulation merges together Directives 2000/13/EC on the labelling of foodstuffs and 90/496/EEC on nutritional labelling in order to improve the level of consumer information and protection in Europe. It applies to food business operators at all stages of the food chain and to all foodstuffs intended for the final consumer, including those served by mass caterers, or to be delivered to mass caterers. For public health reasons, the new rules strengthen protection against allergens.

3. New Provisions: Allergens

Some small but significant changes compared to the previous legislative framework have been introduced and will become utterly compulsory from 13th December. A series of particulars will have to be included in labels in a concrete format–name of the food, a list and quantity of ingredients, list of allergens, date of minimum durability, storage conditions and/or conditions of use, name or business name and address of the food business operator or importer, etc.

The operator under whose name or business name the food is marketed or the importer (if that operator is not established in the EU) will be responsible for the provision of information and must ensure its presence and accuracy. Where foodstuffs are pre-packed, information must appear on the package or on the label attached to it. Where foodstuffs are not pre-packed, information must be sent to the operator receiving the food so that the latter is in a position to provide the information to the final consumer, if necessary. In other words, the Regulation significantly impacts packaging design and communication to both consumers and channel partners.

What probably represents the biggest challenge for the food service sector is the fact that all companies who manufacture, sell or import food into the EU market will be required to provide allergy information on food sold unpackaged. This will increase costs and could even cause problems regarding the drafting of menus for businesses such as restaurants, bakeries or bars.

The Regulation states that the allergen ingredients need to be in the list of ingredients (not separated) and need to be emphasized by a typeset that clearly distinguishes them from the rest of the ingredients. However, Member States retain the right to lay down rules in respect of the information concerning non-pre-packed foods. In fact, the Regulation allows for information on potential allergens to be provided by means of verbal communication rather than labelling in situations where food is served directly to consumers. Some EU States–e.g. UK, Germany, France, Netherlands or Austria - have already enacted provisions in this regard, but others- such as Italy – still need to sort this issue out.

4. New Provisions: Nutritional Information

Moreover, other aspects, such as the devolution of regulatory measures to national level may jeopardize the homogeneity of food labelling throughout the EU and, consequently, internal commerce. In fact, the proliferation of "additional forms of expression and presentation" of nutritional information as per Art. 35 would entail the fragmentation of the requirements on nutritional information and composition in the different Member States, with burdensome consequences for businesses that operate in different countries.

Nonetheless, note must be taken that dispositions on nutrition declaration will not be fully mandatory until the end of 2016. This long lapse of time between publication and full implementation should allow food business operators to conform to the new requirements in a non-traumatic way. In any case, new guidelines or even modifications of some of these provisions would help to avoid the risk of turning labels into a heap of data, which is not actually useful for the consumer, and a burden on the food service sector.

5. Powers of the Commission: technical specifications

Furthermore, the Regulation confers on the Commission the power to adopt implementing and delegated acts with respect to several technical specifications, such as: the definition of "engineered nanomaterials" (which has caused controversy between Parliament and Commission);how the date of minimum durability is indicated; how the country of origin or place of provenance for meat (also controversial) is indicated; the list of foods not required to declare their list of ingredients; the re-examination of the list of substances or products causing allergies or intolerances; or the list of nutrients that may be declared on a voluntary basis. As a result, these concepts have not yet been defined or their definition might change in the future. Thus, it is clear why this lack of normative definitions adds to uncertainty.

6. Transitional Measures

In any case, a transitional period is provided by the Regulation. Foods placed on the market or labelled prior to 13thDecember 2014 and non-compliant with the Regulation may be marketed until stocks have been exhausted. The same will apply to foods placed in the market or labelled prior to 13th December2016 concerning the nutrition declaration.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.